Two States Can Now Require Proof of Citizenship Before Voter Registration

In a big victory for election integrity, Arizona and Kansas — led by their Secretaries of State, Ken Bennett and Kris Kobach — have obtained an order from a federal judge allowing them to enforce their proof-of-citizenship requirement for voter registration.

In a decision issued on March 19, Judge Eric Melgren of the federal district court of Kansas found that the refusal of federal election authorities to add state-specific instructions to the federal voter-registration form notifying residents of Arizona and Kansas that they have to provide proof that they are U.S. citizens to complete their registration is “unlawful and in excess of its statutory authority.”

This long saga started in 2004, when Arizona’s residents overwhelmingly passed a referendum requiring proof of citizenship to register to vote. In 2011, the Kansas legislature passed a similar requirement. The U.S. Election Assistance Commission (EAC), which is responsible for administering the federal voter-registration form established by the National Voter Registration Act of 1993 (NVRA), had initially refused to amend the state-specific instructions for Arizona and Kansas on the federal registration form.

A large number of liberal advocacy groups, including Project Vote and Common Cause, sued Arizona over the requirement in a case that ended up before the U.S. Supreme Court. In 2013 in Arizona v. Inter Tribal Council of Arizona, Inc., the Court issued a confused opinion in which it said that Arizona must “accept and use” the federal voter registration form, despite Arizona’s citizenship requirement.

However, the Court also laid out a blueprint for how Arizona could enforce its requirement: The state could resubmit its request to the EAC and if the federal agency refused to include the instruction, Arizona could sue the EAC under the Administrative Procedure Act and request a writ of mandamus from a court ordering the EAC to make the change.

That is exactly what Arizona and Kansas did. Both states filed a lawsuit and in December, Judge Melgren ordered the EAC to render a final decision on the request of the states by January 17, 2014. Along with over 400 others, I filed a public comment that argued that the EAC lacked the authority to refuse to grant the states’ request.

On January 17, the acting executive director of the EAC, Alice Miller, issued a 46-page letter denying the states’ request.

Judge Melgren said that he was “skeptical” that Miller had the legal authority to issue any decision since the seats of the four commissioners who are supposed to run the EAC are currently vacant. However, the judge found it unnecessary to make a determination on that question, saying his “decision would be the same if a full commission had voted 4–0 to deny the states’ requests.”

As Judge Melgren said, the Supreme Court made clear in the Arizona decision that under the Constitution, “the states, not Congress, set the voter qualifications for federal elections.” Congress can set the rules for voter registration, but it would raise “serious constitutional doubts” if the NVR A were interpreted to prevent states such as Arizona and Kansas from obtaining information necessary to enforce its voter qualifications.

According to the judge, by denying “the states’ request to update the instructions on the federal form, the EAC effectively strips state election officials of the power to enforce the states’ voter eligibility requirements.” Since there is no explicit language in the NVRA addressing “the same subject” as the states’ laws on proof of citizenship, such a requirement is not preempted by the NVRA. In fact, if the NVRA attempted to preempt such a law, it would raise serious doubts about the constitutionality of the NVRA.

Judge Melgren even noted that the state-specific instructions on proof of citizenship are authorized by the EAC’s own regulations, which require the commission to “develop” the federal voter–registration form in cooperation with state officials. An EAC regulation specifies that instructions for the form are supposed to include all “information regarding the states’ specific voter eligibility and registration requirements.”The EAC had a “nondiscretionary duty” to include the proof-of-citizenship requirements in the state instructions particularly since both states had determined that a “mere oath” was not sufficient to verify citizenship. The judge thus ordered the EAC to add the language requested by Arizona and Kansas.

This is a huge loss for the Obama administration, as well as liberal advocacy groups such as the League of Women Voters, Project Vote, and the League of United Latin American’s citizens, all of whom apparently want to make it easy for noncitizens to illegally register and vote in our elections. There is no question that is happening — there have been numerous cases all over the country.

This decision should provide momentum to other states seeking to pass a similar requirement. For anyone interested in ensuring the integrity of our election process, this was a common-sense decision.

It’s too bad implementing a proof-of-citizenship requirement required an expensive, protracted fight all the way to the U.S. Supreme Court, a battle with a federal agency, and a second lawsuit in federal court. But this time, the Constitution and good sense carried the day.

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative. Read his research.

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